Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

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-2.'7. ~. ~//p6c MEMORANDUM YANKEEATOMIC- FRAMINGHAM
To R. M. G~ube/R, A. Rich ~8[8 0etober 19, 1983 # NMG 83-647 From J, M. Buchheic 27, 1983 UNWMG DOE CONTRACT TASK FORCE ~ETING

Group #
W.O.

I.M.& #.

ATTACHMENTS l. Poteutlal Issues to be Addressed in a Rulemaking Proceeding on the DOE Disposal Contracts A~tendanae List

2.

The meeting couvened with a brief discussion on whether or not to go forward with a rulemakiu~ proceadlnE. At the September 7, 1983 greeting Committee mac=lag, it was my understanding that the group's opinion was unanlmuus to go ahead subject to EEl Executive Advlso=y Committee approval, Uh~G attorneys estlma~ed that it would take one to ~wo mouths to prepare the petition to DOE, and that it wou3.d take three co four months more for the various committees within EEI to pass Judgment ou the petition. The procedure for rulemaking was briefly described. Under the Administrative Procedures Act, virtually anyone cam file for a rulemaklng. A party must merely identify i=self and what the issues are. DOE in turn can dmny the petition. If DOE denies the petition, the reasons for such denial must be published in the Federal Register. If DOE goes ahead with a rulemaking proceeding, the proceeding must be published for commas= in the Federal Register. DOE will probably allow a comment period of 30 to 60 days. DOE will make its decision 8/tar reviewing the commeRts. No public hea=ings are reqtuired. However~ ~OE could choose to have h~aripgs as a means of encouraging public participation. Possible adverse problems were discussed. A rulemaklng procedure would open the contra~t to i~tervenors, and DOE could come up with a worse contract. Kowever, an lutarvenor could challenge =he contract at almost any time ~o we

was noted that DOE could publish a notice ~a the Federal Regls~er requesting further commeuts before opealng the contract to a rulemaking. It was also others. Concerr~ing timing, it could he argued that because we have had little experience with the present contract, we should wait ue=ll we see how work. On the ocher hand~ we may no~ get favorable ~reatment from the DOE if

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l~

': DEFENDANT~-$~ YDK045589
YDK045589

Case 1:01-cv-00116-FMA

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R. M. Grube/R. K. Rich October 19, 1983 Page 2

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we de-lay on our pe~itlon for a r~lemakln~ if, for e~ample, a new a4mlnls~ra~ion takes office in 1984. A discussion of some of the issues addressed in At~achmemt 1 follows. i. Contract as a Regulation: In U~MG's lu!tlal comments to DOE on the waste contract, we disagreed that the contract should he a regulation. We disagreed on the basis =hat this allows the interveuors to come in at any poin~ in time and attemp~ to amend the contract, and that there is not enough flex/bility in such a system. We cited the enrichment contracts as an example, stating they are not a regulation, that they have been workable, and cam he amended without difficulty. It was noted that DOE itself has already been inconsistent in that a number of the Ippendices to the con~ra=t were changed w~thout prenotlfication in the Federal Register. ~There are no slgus, however, than DOg deslre~ ~o accede to this change. DOE is likely to argue tha~ if the contra=t zs not a regulation, the public will not be able to ~aralci~ate in the contract in the future Lack of Y~lestoees: DOE's only requirement in the presen~ contract is to take fuel hy January 31, 1998. There are no specific performance s=andards. DOE is required to puhllsh a Mission Plan in April 1984, whleh is to be approved Mission Plan should he incorporated into the contract with attendant

3.

The Gross Versus Net Issue: Alt~ough Wisconsin Electric Power Company~ ~e~ el., have sued the DOE over this issue, DNWMG couesel still fel~ ~hat i~ would be useful ~o m~ke this issue part of a rulemaking procmedlng. The lawsuit and the rulemsklng proceedln~ would Leverage each other. I= other words, the DOE may cho~se to Proceed dlrec=ly with the rulemaking rather than go to Court. If I~ appears that it will he a long =ime before a decision is made on a ~rulemaklng, we could go ahead with a lawsuit. As a matter of in~erest, 0~ may have pressured DOg to selec= gross instead of net over concerns for balanci~ the budget.

4.

Program Review Rights: In our previous cemmeats oe the waste contract, we requested that utillt£~s he given the rlgh= ~o audio =he DOE program. If we petition the DOE for a rulemakleg, it was suggested tha~ we use the word review instead of audit. It was considered that it would be very difficult tu perform an adequate audit and that the DOE may be more receptive to a review of their program rlthar than an audit.

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YDK045590

Case 1:01-cv-00116-FMA

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YDK045591

Case 1:01-cv-00116-FMA

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To From

A. R. Soucv

iiny 17, 1983 FCH B3-~2 ACT FACT SHEET

A~t~ched i~ ~he subjec= informs=ion uhich you requested. In addition/ have provided two pages of hack-up data sur~m~rlzing ~he Was~e Policy Ace and its fln~nc~l impl~c~=ions to Yankee,

R, M. Gruhe Fuel Cycle Dep~r=men~ Manage=

R. A, Rich E. E. Pil~e K. W. Ludwig

YDK013697

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Case 1:01-cv-00116-FMA

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NUCLEAR WASTE POLICY ACT YANKEE MILESTONES

Jan 7 -- President signed Waste Act June 30 -- Yankee signs DOE disposal c=ntrae~ July 31 -- Yankee makes first quarterly paymen~ on new spent fuel

Jan 1 -- DOE recon~ends 3 candidate repository sites June 30 -- Y~nke~ selects payms~ spEio~ for old spen~ fuel

1987: March 31 -- President selects ~irst repository site

Jan I -- NRO approves construction"a~ "flrst si~e

Jan 31 -- First repository opera~ional

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YDK013698
YDK013698

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NUCLEAR o

WASTE POLICY ACT OF 1982 on December 20~ 1982; signed by the President

.~ an

Passed by Congreas January 7, 1983.

The Act Sets a schedule formations. Preslden~ Decision

for repository

development

in des p geologic

decides on first site by March 31, 1987, on second site is required by March 31, 1990,

Final NRC decisions on construction of*the two repositories are required by January I, 1989 and January i, 1992, respectively. DOE ~s required to subm/t a proposal for ~onitored storage (MRS) to Congress hy July lOSS. retrievable"

"Inte~-im Away-From-Reactor (AFK) storage of up to 1900 MTU spent fuel ~rill be allowed at existing federal facilities, hut only after all other alternatives have been exploited; a separate user's fee for A2~ storage will he developed; after a permanenE repository is operating, AFR storage must he phased out within three years. A state or Indian tribe may veto the selection of a repository site, H~Sj or A2K with ~reater than 300 ~fr capacity; a majority vote of hath House and Senate is needed to overturn the veto. Beth high level waste (HLW) and spent fuel will be accepted for disposal in the repository. HLW is defined as the h~ghly radioactive material resulting from reprocesslng of spent nuclear fuel, including liquid waste produced directly in repracesslng and any solid material derived from such liquid waste, A 1 mill per killowatt hour (M/k~h) fee is established for future spent fuel and an equivalent one-tlme per kg hea%-/ metal (HH) fee for existing spent fuel ~rlll he developed; the fee will Co~er the reposltor~, ~8, and transportation.
O

The Federal government will take title to spent fuel at the reactor and will transport it to either an ~ or repssits~. F~ch o~rner or genera6or of spent nuclear fuel or high level waste is required to sign a n~ntract ~rlth t~e U.S. Government by the later of June 30, 1983, or date on which reactor commen=es operation.

site

SUMMARY OF FINANCIAL

IMPLICATIONS of Energy (Secretary) for

A 1 M/kwh fee will he assessed by the Secretary electricity generated heglnn~ug April 7, 1983.

For existing spent fuel and fuel in the reactor core prior to April 7, 1983, a one-tlme fee per Kg ~I~ in ~spent fuel~has been established which is equivalent to an average charge of I M/k~h for the ele=triclty' ol-lglnally generated By the spent fuel.

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YDK013699 YDK013699

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n

Procedures for the dellectlon and payment of the fees have been set forth in the Standard Contract Published hy DOE on April 18, 1983. All fees shall be pa~d to the U.S. Treasury Waste Fund, and deposited in "the Nuclear

o

Once spent fuel or ~LW is delivered =o the Government, "the utility will -have no financial obligation beyond payment of the fee. The Secretary will review the 1 M/kwh fee annually to decide whe=her full cost regove~-y will be achieved or whether excess funds are being collected. If the Secretary determines shore is a seed for an adjustment, he shall transmit his proposal for edJus£ment to Congressj ~hich has 90 working days to reject the proposal. In return for payment of the above fees, the Secretary, Beginning na later than January 31, 1998, will dispose of the high level radioactive waste or spent fuel. FINANCIAL o IMPACT ON YANKEE for i H/kwh due hy the end of month following ¯ ' each

Quarterly payments calendar quarter.

Approximate annual payment for the 1 M/kwh fee b~sed un Yankee's annual gross electrical generation is ~1,200,000. The approximate fee for existing Apr~l 7, 1983 is spent fuel and for fuel In-core

average

prlcr to

Spent fuel 264 assy x 235 ~/assy x ~184 - ii,400,000 I easy x 235 kg/assy x ~S0 - 19,0Q0 !~-co~e at i H/kwh estimate = 1,200,000

Three (3) payment opeion~ to April 7, 1983. Yankee

for exlsrlng spen~ fuel and in-core fuel prior must select its!option by June 30, 1985. if paid on or Before June 30, 1985.

Lump sum with no interest

Quarterly payments for i0 years with interest a~ T-bill rate with final payment to'be made prior to first shipment to reposi~oryo Lump sum payment with interest at. T-bill rate at any time. prlor ~o first shipment tO repository.

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YDK013700 YDK013700

Case 1:01-cv-00116-FMA

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Yankee Atomic

v.U.S.

No.:

98-126C

July

14,

2004

Page 5"74 to Page 793

CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED BY: FIERITAGE REPORTING.COF~PORA TION 1220LStraet, N.W. Suite 600 Washington, DC 20005 Phone: 202-628-4888

Case 1:01-cv-00116-FMA
BSA

Document 179-3
v.U.S. No.:

Filed 06/17/2005
July 14, 2004 Page576

Page 9 of 13
XMAX(It~)

Yankee Atomic Page 574 ]eTHEUtIITER BTATE$ OFFEDERAL COURT CLAI~I5

9B-126C

APpEAR~ICES CONTIOUEO:

3Zl OldFerry Road

Oil BERALFTI~E OF DEFERD~JIT: IIAROLO LESIER. ESO. JR..

Page 5"/7 PROCEEDINGS MR. SHAPIRO: Your Honor, we're reedy {o (4) THE COURT: Good.

(el ~/here,~pon, (g) JOHNWESLEYBARTLETT

GERALD GARFIELD. ESQ. CityPIace I (14) providethe wiblessandto providecopiesto youas

(1"~ pleasant.But, obviously,if youhaveanytrouble (19) THECOURT: I'm more wor~ed about the

(el} DIRECT EXAMINATION

(a4) please.

Page 5?4 to Page

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Case 1:01-cv-00116-FMA
BSA

Document 179-3
No.:

Filed 06/17/2005
July 14~ 2004 Page 712

Page 10 of 13

Yankee Atomic v.U.S. Page710 (1) youwouldnlbedismplthgoperations? A Youwouldgenerally not operatethat wayfor (2) (3) oplimal purposes the mectat.Youwouldcampa{gn at (4) moreonan l B rnonlh or motescheduta~ (5) Q Andyou wouldwentto pick up merethan 1 (5} cask(7} A Yes. {B} O - worthof fuel, wouldn'tyou? (9} A Y~s. yes. (~0.t Q Okay. want talk to younow, I to s~r. about on (11) whetyouhad beendiscussingor you haddisoessed (10) direct examination abouteliminatingthe need for storage. (13) additional aFreoctor (14) When wore director of OCRWM, did not you you (15) do anycolcutation of whetrate el acceptance would be (16) n~caesary order to precludethe need add~onel [n for (17) at*reactorstarage, correct? (18) A I did not, no. (19) Q Andnowas the Yankees'expert witness, you (zo)havenot done calcutationof whatrole of any (~) acceptance wouldba n~cessap/ta preclude the need(or (22) addilionalat-reactorstarage; that con'ect? is A t have net, no. (~) (24) Q Okay. Youhave not doneany calculaSon of (~5) whatrate of acceptance wouldbe necessary preclude to

98-126C

(2) DOE wouldreally just needto make sure th~zt Ihay (3) acceptmore than 2,000MTU year; is that correct? per

Page711 (1) the need addilional at-reaclor storageandwork for (2) off the backlog, right? A I havenot done direct calculation, but any (5} (4) I would ~efet youbackto Ihe mission plan which (5} established 3,000-ton year rata of acceptance a per to {5} avoid the buBdup must-move of fuel. (7) O Andyou're talking aboutthe 1985mission (5} plan? (g) A Yes. (10) O You'vetold us today - endI'm going ~o (11} come beckto that tha second. You'vetold us today accep~nce rate ~hal youadvocateis {12) that 3,000 MTU (15} deslgned, I think this dovetailswith whatyou're and (14J saying,is designed remove of the backlog to port that (15} existabocaesaofcentinuingggnerelionofspentfueL (15} A Yes. (I;3 Q H~zve summar~ed I thatcarrectiy? ('i5} A Yes. amount fuel that'o produced of (19} Q "Fne aggregate (~o~ byallreacta~seachyea~i~,ec(uetly2,0OOMTUpef {ol) year.

(1) (2) (3) (4} (5} {5} (7) (8) (5} (lo) ill) (12) (15}

Page 713 A I don't hovethat. MS.HERRMANN: Shapiro, do you siJ'ti Mr. have that? BY MS. HERRMANN: QAndI'm goingto ask you, sir. abouttab 1. Are you wtih me? A Almost O Okay. Take your time. i'm sorry. A I'm sluck. Tab 1. Q Okay. Looking tab 1, whichis at Pfa[ntiffs' Exhibit 1T5,the CMl{on Redloac~e WasteManagement System ThroughputRata Analysis? A Yes.

(16)study-

{~S) O You -

Page 710 to Page 713

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Yankee Atomic Electric v. U,S Nos.: 98-126C,98-154C,& 98-474C July" 16, - 2004 TRANSCRIPT FILED Page1066 to Page1322

CONDENSED TRANSCRIPT AND CONCORDANCE PREPARED BY; HERITAGE REPORTINGCORPORATION 1220L Street, N.W. Suite 600 Washington, DC 20005 Phone: 202-628-4888 FAX: 202-371-0935

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Case 1:01-cv-00116-FMA
Yankee Atomic Electric Page 1070 (I) June 2004 lsl, letter youalsoid~nti(y

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v.U.S Nos.: 98-126C, 98-154C, & 98-474C July 16, 2004 Page 1072

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Case 1:01-cv-00116-FMA
BSA Yankee Atomic Electric Page 1150

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v.U.S Nos.: 98-126C, 98-154C, & 98-474C July 16, 2004 Page 1152

Page 1151 (21 (3) .--. We understand (4} how fuel is discharged yearby every much eve~ (s) reactor the Uniled in States.And somewhere I~s

Page 1153

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~=,',,="~'~ ~nfn p=,-~o 1.~.~ ~ (202"~628-4888 Heritaga Reporting Corporation